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GONZAGA LAW REVIEW [Vol. 44:3 legislative supermajority's emergency declaration, gave the court the ability to test the legislation against the text of the constitutional exceptions. 50 2 The court concluded that the referendum power may be withheld only where the act falls within the two constitutional exceptions, subject to judicial review: If the act be doubtful, the question of emergency will be treated as a legislative question and the doubt resolved in favor of the declaration of emergency made by the legislative body .... But we are asked how can we say what is within the police power and what is not. The answer is: How did we say, in the many cases decided by this court, that a given condition was within or without the police power? By the exercise of reasonable judgment, by measuring the premise by the standard, would the minds of reasonable men, in light of the needs and necessities of the present, agree that the act is within the police power? °3 Just months after Brislawn's initial insistence on the power of judicial review, Case v. Howell confirmed that in doubtful cases the court must defer to the legislative emergency declaration. 50 4 In the most recent cases, courts offer substantial deference to the legislature, 50 5 though noting that validity of an emergency clause is a judicial question if the legislature has not clearly indicated its intentions. 50 6 Judicial deference to the legislative declaration appears to have reached its zenith-or nadir, depending on one's perspective-in CLEAN v. State, in which the court stated that: 50 7 [S]uch legislative declaration of emergency and necessity for the enactment is conclusive and must be given effect, unless the declaration is on its face obviously false; and, in determining the truth or falsity of the legislative declaration, we will enter upon no inquiry as to the facts but must consider the 502. In a rather mixed metaphor, the Brislawn court declared that the people "fixed a limit beyond which the Legislature cannot go without doing violence to the will and the voice of the people. It is that current in the judicial stream marked by certain phases of the police power and the support of the state government and its existing institutions." Id at 14. 503. Id. at 16-17. Confusingly, within the course of a few pages, Brislawn seems to say both that doubtful cases should be resolved in favor of the legislative declaration, id at 16, and in favor of the reserved right of referendum, id. at 15 ("the doubt, if there be any, should be resolved in favor of the reserved power of the people instead of in the admittedly unwarranted declaration of the Legislature"); cf Wash. State Farm Bureau Fed'n v. Reed, 115 P.3d 301,310 (Wash. 2005) (Johnson, J.M., J., dissenting). These statements should be distinguished. The latter quotation is the Brislawn court's characterization of the holding in Oklahoma City v. Shields, 100 P. 559, 576 (Okla. 1908). The former quotation is Brislawn's holding. 504. Stateexrel. Case v. Howell, 147 P. 1162,1164 (Wash. 1915). 505. CLEAN v. State, 928 P.2d 1054, 1068-69 (Wash. 1996); Wash. State Farm Bureau, 115 P.3d at 305. 506. Wash. State Labor Council v. Reed, 65 P.3d 1203, 1209 (Wash. 2003). 507. CLEAN, 928 P.2d at 1069.
2008/09] WASHINGTON'S LAW OF LAW-MAKING question from what appears upon the face of the act, aided by the court's judicial knowledge. We must give to the action of the legislature and its declaration of 508 an emergency every favorable presumption. In some respects, this deference is rooted in the constitution: courts are ill-situated to second-guess the legislative fact-finding that motivates and justifies (or purports to justify) the legislature's decision to include an emergency clause. The constitutionally prescribed difference in the respective roles necessitates at least some judicial deference to the fact-finding body. 50 9 At the same time, the court should not abandon its duty to give meaning to the constitutional text and to test the four comers of the legislation against that constitutional text, as further discussed below in Section VIII.E. D. The Support of State Government Exception and Farm Bureau v. Reed Under amendment 7, a bill is exempt from referendum if it is "necessary for the. •. support of the state government and its existing public institutions." ' 0 Brislawn initially characterized this exception as pertaining to appropriations legislation, 5 1 1 but shortly thereafter that court took a closer look in Blakeslee. At the time amendment 7 was adopted, whether appropriations bills or bills necessary for the support of state government should be exempt from referendum was a "live topic of controversy." 512 Other states' constitutions specifically exempted, for example, appropriations legislation or tax levies from the referendum power, 513 so the framers of amendment 508. Id at 1066 (quoting State ex rel. Humiston v. Meyers, 380 P.2d 780 (Wash. 1963)). 509. For example, the court does not-and cannot-undertake the research and analysis needed to decide the thousands of factual questions and value judgments that are required to enact a balanced legislative budget, so the court is not well-placed to determine whether additional revenue is needed to support expenditures or establish an adequate ending fund balance. See Wash. State Farm Bureau Fed'n, 115 P.3d at 313-16 (Johnson, J.M., J., dissenting) (legislature could have balanced budget without tax increases); see also State ex rel. Short v. Hinkle, 198 P. 535, 536-37 (Wash. 1921) ("The court is not concerned with whether-for the reason that it cannot know--4he results anticipated by [the law] will be achieved. . . . The Legislature possessed the opportunity (and is conclusively presumed to have availed itself of the opportunity) to know the facts .... [The court] can take no testimony; [it has] no machinery to gather the facts .. ") overruled inpart by State ex re. Robinson v. Reeves, 135 P.2d 75 (Wash. 1943)overruledin part by State ex rel. Hoppe v. Meyers, 363 P.2d 121 (Wash. 1961). Cf Brown v. Owen, No. 81287-0, 2009 WL 564432, at *4-5 (Wash. Mar. 5, 2009) (a primary consideration in separation of powers analysis is that judiciary not be drawn into tasks more appropriate to another branch). 510. WASH. CONST. art. II, § 1 (b). 511. State ex rel. Brislawn v. Meath, 147 P. 11, 16 (Wash. 1915). The support of state government exception was not at issue in Brislawn. 512. State ex rel. Blakeslee v. Clausen, 148 P. 28,31 (Wash. 1915). 513. Id. at 31 (comparing constitutions of Oregon, Arkansas, California, Ohio, Colorado, Michigan, and South Dakota).
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